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2019 DIGILAW 200 (GAU)

BRAJEN BISWAS v. UNION OF INDIA

2019-02-14

ACHINTYA MALLA BUJOR BARUA, AJIT BORTHAKUR

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JUDGMENT : A. M. BUJOR BARUA, J. 1. Heard Ms. D. Ghosh, learned counsel for the petitioners, Mr. A Ali, learned counsel for the Election Commission of India, Mr. J. Payeng, learned standing counsel for the State of Assam appearing for the Foreigners Tribunal and Border Affairs, Ms. A. Verma, learned standing counsel for the authorities under the NRC as well as Ms. G Sarma, learned counsel for the authorities under the Union of India. 2. On being referred by the Superintendent of Police (Border), Morigaon, IM(D)T Case No.148/1983 was registered against the petitioners. Upon the IM(D)T Act of 1983 being declared ultra-vires, the reference was transferred to the Foreigners Tribunal No.3, Morigaon and renumbered as FT(C) Case No.272/2015. The reference was against the petitioner No.1 Brajen Biswas and petitioner No.2 Bhakti Biswas, wife of Brajen Biswas. By the order dated 13.07.2018, the Foreigners Tribunal No.3, Morigaon had given an opinion that Brajen Biswas @ Brajendra Kumar Biswas @ Brajen son of late Jagabandhu Biswas and Pusparani Biswas @ Bhakti Biswas wife of Brajen Biswas @ Brajendra Kumar Biswas @ Brajen are declared to be foreigners and all other blood relations of petitioner No.1 Brajen Biswas are also declared to be deemed to be foreigners. 3. One of the grounds taken in this writ petition is that the reference was made by the Superintendent of Police only against the petitioner No.1 Brajen Biswas and therefore, the Tribunal could not have declared the petitioner No.2 Smti Bhakti Biswas also to be a foreigner. This aspect of the matter has already been settled in Sudhir Kumar Roy -vs- Union of India, wherein it has been held that if a given person is declared to be foreigner, his other family members cannot be so declared. If a given person is declared to be a foreigner, the same may be a basis for the authorities to make a reference against the other family members, but without such reference being made, they cannot be declared to be foreigners. 4. In view of the aforesaid law being laid down, the declaration against the petitioner No.2 Bhakti Biswas wife of Brajen Biswas is unsustainable and accordingly the same is set aside. 5. 4. In view of the aforesaid law being laid down, the declaration against the petitioner No.2 Bhakti Biswas wife of Brajen Biswas is unsustainable and accordingly the same is set aside. 5. The other ground taken is that the records reveal that the enquiry was made against Sri Basudev Biswas son of late Radhika Biswas, whose wife is stated to be Smti Pusparani BIswas, but the reference was made by the Superintendent of Police vide memo dated 30.04.2001 against Brajen Biswas son of late Jagabandhu Biswas of village Rainapathar. We have also taken note of that the enquiry against the petitioner was made under the provisions of Rule-4 of the IM(D)T Rules of 1984, which requires an enquiry officer, on being directed, to make a preliminary enquiry under Rule-4 of the said Rules. 6. As the present reference against the petitioner was made pursuant to such enquiry made under the IM(D)T Rules of 1984 and the enquiry having been made against some other persons other than the person who was referred, we are of the view that the original reference itself made by the Superintendent of Police (Border), Morigaon against the present petitioner No.1 Brajen Biswas @ Brajendra Kumar Biswas son of late Jagabandhu Biswas is not sustainable. The fact that the enquiry was made against another person and the reference was made against the petitioner No.1 is also discernible from the fact that the wife of the petitioner No.1 is Bhakti Biswas whereas the name of the wife of the person against whom the enquiry was made was Pusparani Biswas. 7. For both the reasons aforementioned, the order dated 13.07.2018 of the Foreigners Tribunal No.3, Morigaon in Case No.FT(C) 272/2015 is unsustainable and the same is accordingly set aside. However, as the reference made against the petitioner No.1 is being interfered on a technical ground that the enquiry was made against some other person, it is provided that in the event the Superintendent of Police (Border), Morigaon is of the view that a reference is required to be made against the present petitioner under the law, the Superintendent of Police would be at liberty to do so, if so advised. It is also provided that in the event, the Superintendent of Police (Border), Morigaon is of the view that a proper reference is also required to be made against the person enquired i.e. Basudev Biswas son of late Radhika Biswas, the Superintendent of Police (Border), Morigaon shall also be at liberty to do so, if so advised. 8. The writ petition stands allowed to the extent indicated above. Return the LCR immediately.